case reviews - wiro.nsw.gov.au · kim singh t.as krambach service station v wickenden [2014]...

WIRO Bulletin Issue 21

ISSUE NUMBER 21

Bulletin of the Workers Compensation Independent Review Office (WIRO)

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CASE REVIEWS Recent Cases

These case reviews are not intended to substitute for the headnotes or ratios of the cases. You are strongly encouraged to read the full decisions. Some decisions are linked to AustLii, where available.

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Workers Compensation Commission - Presidential decisions

Extension of time to appeal refused - no exceptional circumstances established

Thompson v State of New South Wales [2018] NSWWCCPD 25 – Wood DP – 27 June

2018

Background

The appellant was employed as a Corrective Services Officer from 1985 until 12 January

2004. He alleged that he suffered a psychological injury due to numerous work-related

events that occurred between 1990 and 2004, but a significant number of the events

occurred before 1 January 2002 (when s65A WCA commenced) and he first sought

psychological treatment in/about October 2000. He then worked permanent night shift until

November 2003, when the employer attempted to return him to full duties (and day shifts).

He was referred for a medical assessment by Health Quest and was medically retired. He

claimed lump sum compensation for permanent impairment due to the injury dated 12

January 2004 (deemed) and the dispute was referred to an AMS, who assessed 23% WPI

for permanent psychological impairment.

However, cl 3 (2) of Part 18C of Schedule 6 WCA provides:

3 Lump sum compensation amendments

(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as

amended by the lump sum compensation amendments) for any proportion of the

permanent impairment concerned that is a previously non-compensable impairment.

This subclause does not limit the operation of section 323 of the 1998 Act or section

68B of the 1987 Act.

As a result, the Arbitrator had to determine the amount of the reduction in compensation

payable for psychological impairment arising from injury suffered prior to 1 January 2002.


On 7 February 2018, he determined the reduction as 90%.

Appeal

The appellant sought leave to appeal against the Arbitrator’s decision and alleged that the

Arbitrator erred: (1) by failing to properly apportion between the incidents causing injury; (2)

by not properly considering the effect of the loss of rostered night shifts upon him; and (3)

by apportioning 90% to pre-2002 injuries when the loss of night shifts escalated his

psychiatric condition to an assessment of 22% WPI.

However, the appeal was lodged late and an extension of time was required under rule 16.2

(12) of the WCC Rules, which provides:

The Commission constituted by a Presidential member may, if a party satisfies the

Presidential member, in exceptional circumstances, that to lose the right to appeal

would work demonstrable and substantial injustice, by order extend the time for

making an appeal.

The appellant alleged that the delay was reasonable and that it was caused by his reliance

on third parties (including delays in obtaining WIRO funding and advice from counsel on the

appeal’s prospects of success) and he argued that “losing the right to seek leave to appeal

would cause him immense demonstrable and substantial injustice”.

The respondent conceded that it would not be prejudiced if an extension of time was

granted. However, it relied upon the decision of Snell DP in Lotos Concretors Pty Ltd v

Mitchell [2018] NSWWCCPD 16, which discussed and applied the principles laid down in

Gallo v Dawson [1990] HCA 30 and Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty

Ltd [2014] NSWCA 34, and upon the decision of Snell DP in Erskine v Cozwine Pty Ltd

[2018] NSWWCCPD 9, with respect to the consideration of r 16.2 (12) of the WCC Rules

and ‘exceptional circumstances’.

The respondent argued that no exceptional circumstances had been established and that

the appeal had minimal prospects of success. However, the appellant argued that he was

only required to establish ‘a fairly arguable case’ and that he had done so (see: Candy ADP

in Hrvat v Thiess Pty Ltd and Hachtief AG Australia [2010] NSWWCCPD 69).

Wood DP held that the appellant’s solicitor was aware of the 28-day time limit for lodging

the appeal, but he had not explained his lack of pro-activity and he did not explain why he

was reliant upon counsel for advice on the prospects of success as he had not briefed

counsel for the arbitration and he had a first-hand knowledge of the case run before the

Arbitrator. He also did not brief counsel to prepare the submissions on appeal. She held that

no exceptional circumstances were established.

Wood DP also held that the appellant must also show that a demonstrable or substantial

injustice would occur if an extension of time was not granted, which requires an assessment

of the merits of the case, as follows:

31. Justice McHugh said in Gallo that in considering an extension of time:

The discretion to extend time is given for the sole purpose of enabling the Court or

Justice to do justice between the parties. ... This means that the discretion can only

be exercised in favour of an applicant upon proof that strict compliance with the rules

will work an injustice upon the applicant. In order to determine whether the rules will

work an injustice, it is necessary to have regard to the history of the proceedings, the

conduct of the parties, the nature of the litigation, and the consequences for the

parties of the grant or refusal of the application for extension of time. ... When the

application is for an extension of time in which to file an appeal, it is always necessary

to consider the prospects of the applicant succeeding in the appeal. ... It is also

necessary to bear in mind in such an application that, upon the expiry of the time for

appealing, the respondent has ‘a vested right to retain the judgment’ unless the


application is granted. ... It follows that, before the applicant can succeed in this

application, there must be material upon which I can be satisfied that to refuse the

application would constitute an injustice.

Wood DP also referred to the decision of the Court of Appeal in Shellharbour City Council v

Rhiannon Rigby [2006] NSWCA 308, in which Beazley JA (Ipp JA agreeing, and Basten JA

agreeing in principle) said at [144]:

Questions of the weight of evidence are peculiarly matters within the province of the

trial judge, unless it can be said that a finding was so against the weight of evidence

that some error must have been involved.

Wood DP noted that the only stressor after 1 January 2002 that the appellant alleged was

he felt pressured to return to normal shifts, but referred to this stressor only briefly in his

statement and he did not describe its effects upon his psyche. Also, his histories to the

medical experts “largely focussed on the specific traumatic events that he encountered

during the 1990’s.” She found that the loss of night shifts was not a significant factor in the

assessment of the WPI and that the events that caused the psychological injury occurred in

the 1990’s. She also found that the Arbitrator did not overlook material facts or give undue

or too little weight to the evidence before him. His reasons set out the relevant evidence in

full and adequately explained why he arrived at his conclusions.

Therefore, the appeal had no prospects of success and the application for leave an

extension of time was refused.

Meaning of “real and substantial connection” in s 10 (3A) WCA

State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 –

Keating P – 3 July 2018

Background

On 5 December 2013, the worker injured her right ankle because of a fall on uneven paving

while she was walking from her hotel (where she was spending the night) to the venue

where she was to attend a work Christmas party. She alleged that she fell because she was

hurrying to get to the party on time and she was tired.

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWWCCPD/2018/26.html


On 1 November 2015, the worker claimed compensation, but the insurer disputed the claim

because: (a) it was not made within 6 months after the injury; (b) the worker had not suffered

an injury arising out of or in the course of her employment; and (c) there was no real and

substantial connection between the employment and the accident or incident out of which

the injury arose.

On 17 August 2016, the worker claimed compensation under s 66 WCA for 31% WPI, but

the insurer maintained its denial of liability. On 26 October 2017, the worker lodged an ARD

that claimed weekly payments, medical and related treatment expenses and lump sum

compensation.

Relevant legislation

Section 10 WCA provides, relevantly:

(1) A personal injury received by a worker on any journey to which this section applies is,

for the purposes of this Act, an injury arising out of or in the course of employment,

and compensation is payable accordingly…

(3) The journeys to which this section applies are as follows:

(a) the daily or other periodic journeys between the worker's place of abode and

place of employment, …

(3A) A journey referred to in subsection (3) to or from the worker's place of abode is a

journey to which this section applies only if there is a real and substantial connection

between the employment and the accident or incident out of which the personal injury

arose…

(6) In this section… ‘place of abode’ includes:

(a) the place where the worker has spent the night preceding a journey and from

which the worker is journeying, and

(b) the place to which the worker is journeying with the intention of there spending

the night following a journey.

Decision at first instance

Arbitrator Egan found that there was a real and substantial connection between the worker’s

employment and the incident out of which the personal injury arose. The mere fact that the

worker was on her way to a work function was not sufficient to establish a real and

substantial connection to her employment and “connection” in s 10 (3A) WCA may, but does

not necessarily, convey the notion of a causal relationship. He referred to the decisions in

Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina) and Dewan Singh and

Kim Singh t.as Krambach Service Station v Wickenden [2014] NSWWCCPD 13

(Wickenden). He also noted that in Wickenden, the fact that the worker was required to

travel in darkness was sufficient to establish a real and substantial connection to

employment, and in Field v Department of Education and Communities [2014] NSWWCCPD

16 (Field), a real and substantial connection was established because the worker was

rushing to commence work on time after receiving short notice to attend work.

Arbitrator Egan held that it was not necessary for the worker to establish that the employer

demanded or required her to attend the party at 6pm for the relevant test to be satisfied.

The employer had not persuasively challenged the worker’s evidence (that she was tired

after a full day’s work and a busy year and that she was hurrying to get to the party or her

pick-up point) and the authorities do not impose a test of reasonableness on the worker’s

motives.


Appeal

The employer appealed and alleged that the Arbitrator erred in law in finding that there was

“a real and substantial connection” and made submissions that are summarised below:

• The Arbitrator drew an inference that could not be drawn as there was no evidence

that there was a strict timeframe for the worker to attend the party and/or that she was

fatigued;

• In Fox v Percy [2003] HCA 22; 214 CLR 118 at [31], the High Court stated:

It is for the tribunal of fact to assess the reliability of the evidence against the

‘contemporary materials, objectively established facts and the apparent logic of

events.

It argued that there was no evidence that punctuality was important to the employer

and while the worker may have been hurrying, “taking an evaluative approach of

impression and degree, the reasons for the hurrying were her own.” Therefore, the

reliability of the evidence was not assessed against contemporary materials,

objectively established facts and the apparent logic of events;

• The worker did not logically explain the basis for her alleged tiredness and it was not

open to the Arbitrator to infer that she was tired without any logical or plausible

reasons being given. It was also contradictory for the Arbitrator to find that common

sense suggests that fatigue reduces awareness and reaction times; and

• The Arbitrator did not consider, or did not properly consider, its submissions during

the Arbitration - particularly regarding the decision in Field.

Keating P held that that the appellant bears the onus of proving that the Arbitrator’s findings

were not open to him – i.e. they were not supported by the evidence or the evidence,

properly evaluated, demonstrated a contrary view to that adopted by the Arbitrator. He cited

the decision of DP Roche in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Roulston),

which set out the principles that apply to challenges to factual findings on appeal, as follows:

19. First, as error now defines the appeal process under s 352, the following principles

stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505

at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ

in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant

(I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):

(a) An Arbitrator, though not basing his or her findings on credit, may have preferred

one view of the primary facts to another as being more probable. Such a finding

may only be disturbed by a Presidential member if ‘other probabilities so

outweigh that chosen by the [Arbitrator] that it can be said that his [or her]

conclusion was wrong’.

(b) Having found the primary facts, the Arbitrator may draw a particular inference

from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’.

It is not enough that the Presidential member would have drawn a different

inference. It must be shown that the Arbitrator was wrong.

(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts

have been overlooked, or given undue or too little weight in deciding the

inference to be drawn: or the available inference in the opposite sense to that

chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court

that the [Arbitrator’s] decision is wrong.’


20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston

Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is

also instructive in the context of the need to establish error. His Honour observed (at

[28]):

In that process of considering the facts for itself and giving weight to the views

of, and advantages held by, the trial judge, if a choice arises between

conclusions equally open and finely balanced and where there is, or can be, no

preponderance of view, the conclusion of error is not necessarily arrived at

merely because of a preference of view of the appeal court for some fact or

facts contrary to the view reached by the trial judge. (see: Roulston [19]- [20]).

Keating P held that the relevant test under s 10 (3A) is less demanding than the test under

s 4 WCA, and it may but does not necessarily convey the notion of a causal connection. It

requires an association or relationship between the employment and the accident or incident

that may be provided by establishing that the employment caused the accident or incident,

but employment does not have to be the only or even the main cause. He found that the

Arbitrator correctly observed the factors that contributed to the worker’s fall and stated that

whether any of the factors were connected to the accident out of which the personal injury

arose was a question of fact that required the drawing of an inference - “an exercise of the

ordinary powers of human reason in the light of human experience” (see: G v H [1994] HCA

48; 181 CLR 387, 390 (G v H).

Keating P also stated that an error is unlikely to be established where all that is shown is

that the arbitrator made a choice between competing inferences (see: Minister for

Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359,

369). The Arbitrator accepted the worker’s evidence, which was not ‘inherently illogical or

unreliable” or defective in some other material way (see: Hamod, [338]; Thompson, [21])

and he did not err in doing so. He also did not err in drawing the inference that common

sense suggested that fatigue reduces awareness and reaction time and therefore

contributed to the fall.

The appeal was dismissed.

WCC lacks power to make an order under s 53 WCA after the end of the second entitlement period in the absence of an award of weekly payments.

Paterson v Paterson Panel Workz Pty Limited [2018] NSWWCCPD 27 – Keating P – 6

July 2018

Background

On 18 October 2013, the appellant injured his left ankle and foot and he suffered

consequential injuries to his right knee and left hip. He claimed compensation and received

voluntary payments of weekly compensation for more than 205 weeks in respect of his

injuries. However, on 13 December 2017, he left Australia with the intention of residing

permanently in the Philippines.

On 2 January 2018, the appellant lodged an ARD and claimed lump sum compensation and

medical and related treatment expenses in respect of his injuries.

However, on 19 January 2018, the appellant’s solicitor gave written notice to the respondent

that the appellant ‘would seek to remain on ongoing weekly compensation while he resides

outside of Australia pursuant to s 53 of the 1987 Act’. On 1 February 2018, the respondent

disputed that the appellant was entitled to further weekly payments as ‘he had not obtained

the requisite certificate or determination pursuant to s 53 of the 1987 Act, that his incapacity

for work was likely to be of a permanent nature’.


On 9 February 2018, the ARD was amended to claim continuing weekly payments from 13

December 2017.

Relevant legislation

Section 53 WCA provides:

(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under

an award ceases to reside in Australia, the worker shall thereupon cease to be entitled

to receive any weekly payment, unless an approved medical specialist certifies, or the

Commission determines, that the incapacity for work resulting from the injury is likely

to be of a permanent nature.

(2) If the incapacity is so certified or determined to be of a permanent nature, the worker

is entitled to receive quarterly the amount of the weekly payments accruing due during

the preceding quarter, so long as the worker establishes, in such manner and at such

intervals as the insurer may require, the worker’s identity and the continuance of the

incapacity in respect of which the weekly payment is payable.

Clause 17 of Sch 8 to the Workers Compensation Regulation 2016 (cl 17 of Sch 6 of the

2016 Regulation) provides:

(1) On and from 1 September 2015, the weekly payments amendments apply to the

compensation payable under Division 2 of Part 3 of the 1987 Act (in respect of any

period of incapacity occurring on and after that date) to an existing recipient of weekly

payments in respect of whom a work capacity assessment has not been conducted

before that date.

(2) For the purposes of the application under this clause of the weekly payments

amendments to an existing recipient of weekly payments who is in receipt of weekly

payments of compensation immediately before 1 September 2015, the worker is taken

(until a work capacity assessment is conducted in respect of the worker) to have been

assessed by the insurer as having no current work capacity.

Decision at first instance.

On 5 March 2018, Senior Arbitrator McDonald conducted a conciliation/arbitration hearing.

There was no dispute between the parties regarding the level of the appellant’s incapacity

or that this was ‘permanent’.

However, on 25 March 2018, the Senior Arbitrator issued a Certificate of Determination,

which declined to make a declaration under s 53 WCA as the appellant was not a worker

‘receiving or entitled to receive a weekly payment of compensation under an award’. She

held that the WCC has no jurisdiction to enter an award in the appellant’s favour and that s

53 WCA did not apply. She stated at [20]:

Because Mr Paterson is not in receipt of payments under an award, s 53 does not apply

and there is no jurisdiction to make a determination as to the permanence of his injury or to

refer the question to an Approved Medical Specialist. Any entitlement to payments depends

on the insurer’s management of the claim.

Appeal

The worker appealed and alleged that the Senior Arbitrator erred:

(a) in determining that a favourable determination in respect of weekly payments, whether

by operation of law or decision of an insurer, could not constitute an award within the

meaning of s 53 WCA;

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/wcr2016346/s71.html#clause


(b) in the alternative, in failing to consider whether a favourable determination in respect

of weekly payments, whether by operation of law or decision of an insurer, could

constitute an award within the meaning of s 53 WCA;

(c) in the alternative, in finding that the insurer had not raised a dispute about the

appellant’s entitlements to weekly compensation, and

(d) in the alternative, in finding that the Commission had no jurisdiction to resolve a

dispute about weekly compensation.

Keating P stated that the issue for determination was whether the making of an “award” of

compensation is within the exclusive domain of the WCC or extends to an insurer? That is,

whether the making of payments after the second entitlement period could constitute an

award as contemplated by s 53 WCA and therefore enliven the WCC’s jurisdiction or the

power of an AMS to issue a determination or certification under s 53 WCA.

Keating P rejected the appellant’s submission that “award” includes a “positive decision

(actual or deemed)” regarding the payment of weekly compensation by an insurer, for

reasons including:

108…Third, whilst I accept that a “decision” of the Commission and an “award” of the

Commission may mean the same thing in some circumstances, in reference to work

capacity decisions, the language used is specific to “decisions by insurers”. A decision

by an insurer cannot be conflated with a decision or award of the Commission for the

purpose of satisfying a jurisdictional fact necessary to invoke the Commission’s

jurisdiction under s 53 of the 1987 Act. As the legislative history demonstrates, s 53

of the 1987 Act introduced the requirement that for an order under s 53 to be made

by the Commission, the worker must be receiving or entitled to receive weekly

payments of compensation “under an award.” …

110. The text of the legislation is plain. It restricts the application of s 53 of the 1987

Act, to workers who cease to reside in Australia where the worker is receiving or

entitled to receive a weekly payment of compensation under an award. Unlike previous

iterations of s 53 of the 1987 Act, the text does not refer to a worker receiving weekly

payments whether it be pursuant to an award or otherwise. It is specific to workers

who receive a weekly payment pursuant to an award. There is no dispute in this case

that Mr Paterson was not receiving or entitled to receive compensation pursuant to an

award of the Commission. He was receiving voluntary payments of weekly benefits

until they were suspended by the insurer due to a purported failure to comply with s

53 of the 1987 Act.

111. Further, it is an accepted canon of statutory construction that all words of a

provision must have work to do. In Project Blue Sky (1998] MCA 28; 194 CLR 355)

the High Court by majority held:

… [a] court construing a statutory provision must strive to give meaning to every

word of the provision. In the Commonwealth v Baume [1905] HAC 11; 2 CLR

405, Griffith CJ cited R v Berchet [(1688) [1794] EngR 1806; 1 Show KB 106;

98 ER 480] to support the proposition that it was ‘a known rule in the

interpretation of Statutes that such a sense is to be made upon the whole as

that no clause, sentence, or word shall prove superfluous, void, or insignificant,

if by any other construction they may all be made useful and pertinent’ (at [71]).”


112. The use of the words in s 53 of the 1987 Act “under an award” must have

meaning and must be given work to do. For the reasons above, “an award” under the

1987 Act or the 1998 Act invariably refers to the power of the Commission to make

orders in respect of compensation benefits. It follows that the preferred construction

of the words “under an award” in s 53 of the 1987 Act refers to the Commission’s

power to make orders or “awards” with respect to compensation benefits. Contrary to

Mr Paterson’s submission it does not extend to a decision of an insurer.

Keating P held that the appellant’s circumstances identify a gap or lacuna in the legislation

regarding the making of orders for the payment of compensation overseas, as it only permits

the making of such orders by the WCC in circumstances where it has entered an award in

respect of the worker’s entitlements. It does not provide a remedy to enforce the payment

of compensation overseas when they are being made voluntarily or under the deeming

provision in cl 17 of Sch 8 of the 2016 Regulation. He also stated:

128. In Lee, I held that the Commission has very broad powers to hear and determine

all matters arising under both the 1987 and 1998 Acts. However, the “exclusive

jurisdiction” granted to the Commission, pursuant to s 105 (1) of the 1998 Act, is

qualified by the express prohibitions in ss 43 (3) and 44 (5) of the 1987 Act. Those

provisions removed the Commission’s jurisdiction to determine any dispute about a

work capacity decision of an insurer and prevent the Commission from making a

decision in respect of a dispute before it that is inconsistent with a work capacity

decision of an insurer (s 43 (3) of the 1987 Act). I further held that it was clear from

the unambiguous terms of s 38 of the 1987 Act that an entitlement to compensation

under that section must be assessed by an insurer, not by the Commission. For these

reasons, I reject Mr Paterson’s submission that the Commission is endowed with the

requisite jurisdiction pursuant to s 105 of the 1998 Act, to make the orders sought.

Keating P noted that the decision in Lee was recently approved by the Court of Appeal in

Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88. He rejected the appellant’s

submission that the WCC has jurisdiction to make an award for weekly compensation under

s 38 WCA by operation of cl 17 of Sch 8 of the 2016 Regulation and that a determination

under s 38 WCA “could not violate the prohibition contained in s 43 (3) of the 1987 Act.” He

held that this is a transitional provision relating to the effect on existing recipients of weekly

payments of compensation where no work capacity assessment had been undertaken,

which provides that “a worker is taken (until a work capacity assessment is conducted in

respect of the worker) to have been assessed by the insurer as having no current work

capacity.” However, there is no entitlement to further weekly payments after the expiration

of the second entitlement period unless the worker is assessed by the insurer as having no

current work capacity and is likely to continue indefinitely to have no current work capacity

(see s 38 (2)). In any event, the benefit of a deemed assessment under cl 17 is of limited

duration and only applies until the insurer undertakes a work capacity assessment.

This is not the same as satisfying the precondition to the assessment of an entitlement under

s 38 (2) WCA and it does not enliven the WCC’s jurisdiction to enter an award under s 38

WCA. In turn, it does not satisfy the jurisdictional fact required for it to exercise power under

s 53 WCA.


Keating P concluded:

139. In Lee I held that it was clear from the unambiguous terms of s 38 of the 1987

Act that an entitlement to compensation under the section must be assessed by the

insurer, not by the Commission. In Jaffarie, Leeming JA (White and Macfarlan JJA

agreeing) held that that statement was “entirely correct” (at [29]).

140. It follows that while there may be a factual distinction between the present matter

and Lee, the outcome is the same, namely that the Commission is precluded from

making an award because the preconditions to entering an award pursuant to s 38(2)

of the 1987 Act have not been satisfied. That is because the insurer has not made a

work capacity assessment that deals with both limbs of s 38(2), and therefore the

Commission has no jurisdiction to enter an award until the insurer assesses Mr

Paterson’s ongoing entitlements.

The Certificate of Determination was confirmed.

Comment:

“Existing Recipient of Weekly Payments” is defined in Sch 6 Pt 19H Cl 1 WCA as “an injured

worker who is in receipt of weekly payments of compensation immediately before the

commencement of the weekly payments amendments.”

However, the decision indicates that the appellant was injured on 18 October 2013, after

the commencement of the 2012 amendments to WCA. Therefore, he does not satisfy the

definition of an ‘existing recipient of weekly payments’ and it appears that Sch 8 cl 17 of the

2016 Regulation does not apply.

The evaluative judgment of reasonableness in the context of s 11A (1) WCA

Mascaro v Inner West Council – [2018] NSWWCCPD 29 – Acting President Snell – 12

July 2018

Background

The appellant commenced employment with the respondent as a child care worker on 7

August 1989. From about 1991, she was a director of child care centres operated by the

respondent. On 12 September 2014, an incident occurred in which a supervisor, who was

subordinate to the appellant, spoke to her in a way that she found aggressive and she

reported this to the respondent. The supervisor also made a complaint about the appellant.

The respondent investigated, during which it interviewed staff at the child care centre, and

they raised concerns about the appellant’s leadership. On 24 October 2014, the appellant

was transferred to another child care centre at her own request.

On 12 November 2014, the respondent dismissed the complaints made by the appellant

and the supervisor. However, on 13 November 2014, it issued a Formal Counselling Report

to the appellant, which concluded that allegations against her had been substantiated –

namely: she told staff to have children keep their voices down; she did not adhere to

staff/children rations; and she was rude to staff. It notified her that these behaviours were

not acceptable and that a formal counselling plan would be issued and that she would be

provided with a development plan to assist her to develop her leadership skills.


On 12 January 2015, the appellant commenced a ‘Professional Development and Mentoring

Program’. On 16 March 2015, the appellant attended a meeting with representatives of the

respondent and a support person, during which she was advised that following a period of

pre-arranged extended leave she would be required to undertake further mentoring. She

was upset by this decision and consulted her GP on 17 March 2015. She obtained a medical

certificate that indicated that she had no current work capacity. She lodged a claim form

dated 24 March 2015 and on 2 July 2015, the insurer disputed the claim on grounds that

included reliance upon s 11A (1) WCA.

An ARD was registered on 22 March 2017 and the matter was listed for conciliation and

Arbitration on 7 June 2017. It was listed for further hearings on 21 June 2017 and 28 July

2017 and written submissions were then filed.

Decision at First Instance

On 8 January 2018, the Arbitrator issued a Certificate of Determination and Statement of

Reasons for Decision. He accepted that the worker had developed a Major Depressive

Disorder or Episode by late 2016 and held that the incident on 12 September 2014 and the

requirement for mentoring contributed were the main contributing factors to the contraction

of a psychological injury. However, he held that the employer’s actions were the

predominant cause of the psychological injury as they were more numerous than the

incident on 12 September 2014 and more proximate to the appellant’s taking of sick leave

on 17 & 18 March 2015.

The Arbitrator referred to Northern NSW Local Health Network v Heggie [2018] NSWWCC

3 and quoted from the summation of principle set out at [59] of that decision. He concluded

that the respondent’s investigation of the allegations against the appellant and the outcomes

of that investigation, which included communication of the adverse findings, the

administration of the mentoring program and the communication on 16 March 2015, were

properly characterised as actions with respect to ‘discipline’. He held that the

reasonableness of those actions was “to be determined objectively weighing all the relevant

factors” and referred to the decision of Geraghty CCJ in Irwin v Director- General of School

Education (unreported - 18 June 1998). He held that the respondent’s actions with respect

to discipline were ‘reasonable’ and that the s 11A defence was made out. He entered an

award for the respondent.

Appeal

The appellant lodged an application to appeal on 6 February 2018, but this was rejected as

it was lodged late. The application was re-lodged on 19 February 2018, with submissions in

support of an application for extension of time. It set out the following grounds of appeal:

1. The Arbitrator did not identify the correct test of causation in considering the defence

pursuant to s 11A (1) of the 1987 Act;

2. The Arbitrator did not apply the correct test of causation in considering the defence

pursuant to s 11A (1) of the 1987 Act;

3. The Arbitrator failed to consider the opinion of Dr Allnutt, that the worker’s

deteriorating psychological state, after 12 September 2014, compromised her

capacity to perform adequately in a mentoring program;

4. In considering the test of causation when assessing the defence pursuant to s 11A

(1) of the 1987 Act, the Arbitrator took account of the causal contribution of workplace

events other than those he had found to constitute ‘injury’ within the meaning of s 4

of the 1987 Act;


5. The Arbitrator erred in determining that the requirement that the worker participate in

a mentoring program constituted action in respect of ‘discipline’ for the purposes of s

11A of the 1987 Act; and

6. The Arbitrator erred in finding that the actions of the Council in respect of discipline

were ‘reasonable’.

Application for extension of time

The appellant submitted that the delay in lodgement was due to several factors, including

an administrative error by counsel, and that her rights potentially involve a substantial

entitlement that she would be unable to exert if time was not extended. She also submitted

that the delay was not due to any personal delinquency and the interests of justice favour

granting an extension of time.

The respondent opposed the application and argued that exceptional circumstances were

not established and that as the appeal cannot succeed on its merits, the application should

be refused.

Snell AP cited the decision of DP Roche in Allen v Roads and Maritime Services [2015]

NSWWCCPD 39, which summarised the principles set out in Gallo v Dawson [1990] HCA

30 and set out the matters to be considered, namely: (a) the history of the proceedings; (b)

the conduct of the parties; (c) the nature of the litigation; (d) the consequences for the parties

of the grant or refusal of the application for the extension of time; (e) the prospects of the

applicant succeeding in the appeal, and (f) upon expiry of the time for appealing, the

respondent has a vested right to retain the judgment unless the application for extension of

time is granted.

He also cited the decision of the Court of Appeal in Land Enviro Corp Pty Ltd v HTT Huntley

Heritage Pty Ltd [2014] NSWCA 34, per Basten JA (Beazley P and Leeming JA agreeing),

which held that the primary considerations on an application for leave to extend time are:

(a) the extent of the delay and reasons therefor; (b) the prejudice to the applicant if the

application were to be refused; (c) the prejudice to the defendant from the delay if the

application were to be granted; and (d) the prospects of success on the proposed appeal.

He also cited the decision of Campbell JA in Yacoub v Pilkington (Australia) Ltd [2007]

NSWCA 290, and stated that in deciding whether ‘exceptional circumstances’ were present,

it was necessary to bear in mind ‘System objectives’ and ‘Procedure before the Commission’

(Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [23]).

Snell AP noted that the appellant’s submissions did not specifically address ‘exceptional

circumstances’ and that the appeal was lodged late because counsel diarised an incorrect

date for lodgement of the appeal. Based upon the decision of O’Carroll Constructions Pty

Ltd v Burgess [2007] NSWWCCPD 224, [22], in which DP Roche held that “inadvertence or

administrative errors by a legal practitioner do not amount to exceptional circumstances”,

he held that exceptional circumstances were not established.

Merits of the Appeal

In relation to the merits of the appeal, Snell AP held that grounds 1 to 4 could not succeed.

He noted that in Ponan v George Weston Foods Ltd, Handley ADP held that ‘predominant’

in s 11A (1) WCA meant “mainly or principally caused” and that this was applied by Roche

DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd. In that matter, Roche

DP also dealt with the s 11A (1) causation issue, on the basis that Kooragang Cement Pty

Ltd v Bates applied and that “causation is a question of fact to be determined on the

evidence in each case”. He stated:


91. It would have been desirable for the Arbitrator to more fully describe the test on

causation which he applied. However, it was not essential, providing he actually

applied an appropriate test. The balance of these grounds essentially hinge on

whether there was error in application of an appropriate test…

105…On a fair reading of the Arbitrator’s reasons, it is clear that he found the matters

described at both [88] and [92] of his reasons to be causative of the psychological

injury. It follows that he did not commit the error alleged in ground no 4, of applying

the causation test in s 11A (1) to matters which were not part of a relevant cause of

injury. Ground no 4 cannot succeed.

106. Ground no 2 challenges the Arbitrator’s approach in comparing the relative

contributions of the incident on 12 September 2014, with the other workplace

stressors which he identified as causative. In the absence of the incident on 12

September 2014, the other stressors found to be causative were all workplace

stressors, which were found to constitute actions of the Council in respect of

‘discipline’. There were no other competing causes of the psychological injury. In these

circumstances, ground no 2 cannot succeed…

Snell AP also cited the decision of Sackville AJA (Ward JA agreeing) in Heggie, that

‘discipline’ in s 11A (1) WCA is “capable of extending to the entire process involved in

disciplinary action, including the course of an investigation (at [59]).” He stated:

135…The parties’ submissions do not deal with this broader issue in any detail, but

direct themselves to whether the factual situation at hand can be appropriately

characterised as ‘discipline’. Applying the clear meaning of the text, in my view the

Arbitrator did not err, in his conclusion at [95]– [96] of his reasons, that the Council’s

relevant actions were “with respect to discipline”. This outcome does not depend on

the term ‘discipline’ being given a broad meaning consistent with the decision in

Kushwaha. The Arbitrator’s approach was also consistent with that in Sinclair, of

considering the entirety of the conduct. Ground no 5 cannot succeed.

In relation to ground 6, he stated:

142. For ground no 6 to succeed, it is necessary that Ms Mascaro identify “error in

making the evaluative judgment as to reasonableness … factual error of the kind

described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr [(1966) 39 ALJR

505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby

JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227)” …The

factual finding on this issue involved elements of fact, degree, opinion or judgment. It

would not be appealable error if I was of the view that a different outcome was

preferable. I accept the submission of the Council, that the Arbitrator’s findings of fact

relevant to ‘reasonableness’ were available on the evidence. Ground no 6 cannot

succeed.

The application for an extension of time under r 16.2 (12) of the WCC Rules was refused.


Parking Patrol Officer is not a Police Officer within the meaning of Sch 6, Pt 19H, cl 25 WCA

Mahal v The State of New South Wales (No 3) - [2018] NSWWCCPD 30 – Acting

President Snell – 20 July 2018

Background

The issue upon appeal was whether the appellant, who was employed by the NSW Police

Force as a Parking Patrol Officer was a ‘Police Officer’ within the meaning of Sch 6, Pt 19H,

cl 25 WCA, such that she was not subject to the 2012 amendments and s 39 WCA.

The appellant was employed by the respondent from 13 January 1997 to 4 December 2001.

She suffered work-related injuries to her neck, back, both arms and both legs and received

compensation and in 2003, she received lump sum compensation under s 66 WCA (Table

of Maims) and under for pain and suffering under s 67 WCA.

In 2016, the appellant lodged an ARD that claimed lump sum compensation, weekly

payments and medical treatment expenses, but ultimately the only matters that proceeded

were a claim for further lump sum compensation and a threshold dispute. The AMS

assessed 7% WPI and this assessment was upheld despite a series of unsuccessful

medical and Presidential appeals and applications for reconsideration by the appellant.

On 17 August 2017, the Insurer notified the appellant that as the AMS assessed less than

21% WPI, she would not be entitled to receive weekly payments beyond 260 weeks.

However, on 24 August 2017, the appellant responded that s 39 WCA did not apply to her

because she was ‘a Police Officer’. On 13 September 2017, the insurer issued a notice

under s 39 WCA and advised the appellant that her last date of entitlement to weekly

payments would be 1 January 2018. The appellant then filed an ARD claiming continuing

weekly payments from 1 January 2018.

Decision at first instance

The appellant was legally represented in the proceedings before the Arbitrator. On 19

December 2017, Arbitrator Dalley directed the parties to file and serve written submissions

dealing with the issue of whether the appellant was, at the relevant time, a Police Officer

and therefore exempted from the operation of the 2012 amendments. The issue was then

to be determined on the papers.

The appellant filed lengthy written submissions, accompanied by 79 pages of material and

short submissions from her counsel. These referred to decisions in State of New South

Wales v Stockwell [2017] NSWCA 30 and State of New South Wales v Chapman- Davis

[2016] NSWCA 237, and submitted that she was ‘an exempt worker being a Police Officer’

and she cited aspects of her employment that she alleged were consistent with being ‘a

Police Officer.’ She also argued that ‘Police Officer’ was not defined in the WCA and that

only the dictionary meaning could be read into it. She described the application of the

definition of ‘police officer’ in the Interpretation Act 1987 as ‘a figment by the respondent to

avoid the ordinary dictionary meaning’ and that the respondent’s argument was ‘far-fetched

and preposterous.’ and that

The respondent referred to various relevant statutory provisions and relied upon decisions

in Muscat v Parramatta City Council [2014] NSWWCC 406 and D’Angelo v NSW Police

Force [2016] NSWWCC 54. It submitted that management of the appellant’s claim was

consistent with her not being an exempt worker and that she was subject to the 2012

amendments.


On 8 March 2018, the Arbitrator issued a Certificate of Determination and Statement of

Reasons. After setting out the legislative provisions, the Arbitrator noted that the definition

of ‘Police Officer’ in the interpretation Act applied, in the absence of contrary intention in the

Interpretation Act, or the Act, or instrument concerned. He rejected the proposition that the

beneficial nature of the legislation, or sections 3 and 254 WIMA demonstrated a contrary

intention – to displace the meaning established by the Interpretation Act and stated that

where there was conflict between the beneficial nature of the legislation and the 2012

amending Act, it was necessary to identify the leading and subordinate provisions. He

concluded that the more specific definition in the interpretation Act must override a more

general provision in other legislation.

The Arbitrator rejected the appellant’s submission that the respondent ‘acquiesced’ to an

allegation that she was a ‘Police Officer’ in earlier claims, as her status was not at issue in

the earlier claims. He also distinguished Stockwell and Chapman-Davis, as being decisions

involving the term ‘Paramedic’, which was not defined in either the workers compensation

legislation or the Interpretation Act. He accepted that the decision in Muscat applied.

Therefore, the appellant did not fall within the statutory definition of ‘Police Officer’ and she

was not an exempt worker and the WCC had no power to order the payment of weekly

compensation after 1 January 2018.

Appeal

The appellant appealed on the following grounds:

1. The Arbitrator erred in applying the definition of ‘police officer’ in the Interpretation Act,

rather than a meaning of that term that includes the appellant and flows from the terms

of the 1998 Act itself to the Police Regulation (Superannuation) Act 1906.

2. The respondent is estopped, by its failure to dispute the appellant’s status as a ‘police

officer’ in the original proceedings in which the appellant was awarded benefits over

a decade ago, from now asserting she is not a ‘police officer’ for the purposes of the

2012 Amending Act.

3. The Arbitrator erred in not following “the essence of the arguments” in Stockwell and

Chapman-Davis, cases decided by the President of the Commission, in relation to the

exemption of ambulance officers.

4. The Arbitrator erred in applying the reasoning in Muscat. Some of the arguments

made in the current matter were not present in Muscat. The appellant was not given

an opportunity to address the application of Muscat, including whether it was correctly

decided.

5. The decision of the Arbitrator is illogical based upon Minister for Immigration and

Citizenship v Li [2013] HCA 18; 249 CLR 332 decision of the High Court, since the

reasoning is adopted in a workers compensation matter by the Court of Appeal in a

comment of Sackville AJA in Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335

at [63].

6. The appellant was denied procedural fairness, in that the Arbitrator denied her the

opportunity to be heard when such a request was made.

7. The Arbitrator erred, in that he accepted the respondent’s arguments going to whether

the appellant was an exempt worker in his decision on 20 February 2018, before his

decision on 8 March 2018.


Relevant Legislation

Schedule 6, Part 19H, clause 25 of the 1987 Act provides:

25 Police officers, paramedics and firefighters

The amendments made by the 2012 amending Act do not apply to or in respect of an

injury received by a police officer, paramedic or firefighter (before or after the

commencement of this clause), and the Workers Compensation Acts (and the

regulations under those Acts) apply to and in respect of such an injury as if those

amendments had not been enacted.

Section 21 of the Interpretation Act relevantly provides:

21 Meanings of commonly used words and expressions

(1) In any Act or instrument:

…police officer means a member of the NSW Police Force who is a police

officer within the meaning of the Police Act 1990.

Section 3 of the Interpretation Act provides:

3 Definitions

(1) In this Act:

instrument means an instrument (including a statutory rule or an environmental

planning instrument) made under an Act, and includes an instrument made under any

such instrument.

(2) In this Act:

(a) a reference to a function includes a reference to a power, authority and

duty, and

(b) a reference to the exercise of a function includes, in relation to a duty, a

reference to the performance of the duty.

Section 5 of the Interpretation Act provides:

5 Application of Act

(1) This Act applies to all Acts and instruments (including this Act) whether enacted

or made before or after the commencement of this Act.

(2) This Act applies to an Act or instrument except in so far as the contrary intention

appears in this Act or in the Act or instrument concerned.

(3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the

same way as it applies to the whole of an Act or instrument.

(4) Nothing in this Act excludes the application to an Act or instrument of a rule of

construction applicable to it and not inconsistent with this Act.

(5) This section does not authorise a statutory rule to exclude or modify the

operation of Part 6 (statutory rules and certain other instruments).

(6) The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that

apply to a statutory rule also apply to an environmental planning instrument.


Section 3 of the Police Act 1990 (the Police Act) provides:

3 Definitions

(1) In this Act: …

police officer means a member of the NSW Police Force holding a position which is

designated under this Act as a position to be held by a police officer.

Section 12 of the Police Act provides:

12 Ranks and grades of police officers

(1) The ranks of police officers within the NSW Police Force are (in descending order) as

follows:

(a) Commissioner.

(b) NSW Police Force senior executive.

(c) Superintendent.

(d) Inspector.

(e) Sergeant.

(f) Constable.

(2) The Commissioner, with the approval of the Minister, may specify different ranks for

police officers who are NSW Police Force senior executives.

(3) The regulations may specify grades within the ranks of superintendent, inspector,

sergeant and constable.

Section 13 of the Police Act provides:

13 Oath to be taken by persons exercising police functions

(1) Before a person exercises any of the functions of a police officer, the person must

take the oath or make the affirmation of office as a police officer in accordance with

the regulations.

(2) A police officer is not required to take a further oath or make a further affirmation after

a change in the officer’s position in the NSW Police Force, so long as the officer

remains in the NSW Police Force.

(3) An oath or affirmation under this section is to be administered by or made before the

Commissioner or any other person authorised to administer an official oath under the

Oaths Act 1900.

The definition of ‘worker’ in s 4 of the 1998 Act relevantly reads:

worker means a person who has entered into or works under a contract of service or

a training contract with an employer (whether by way of manual labour, clerical work

or otherwise, and whether the contract is expressed or implied, and whether the

contract is oral or in writing). However, it does not include:

(a) a member of the NSW Police Force who is a contributor to the Police

Superannuation Fund under the Police Regulation (Superannuation) Act 1906...


Section 39 WCA (inserted by the 2012 Amending Act) provides:

39 Cessation of weekly payments after 5 years

(1) Despite any other provision of this Division, a worker has no entitlement to weekly

payments of compensation under this Division in respect of an injury after an

aggregate period of 260 weeks (whether or not consecutive) in respect of which a

weekly payment has been paid or is payable to the worker in respect of the injury.

(2) This section does not apply to an injured worker whose injury results in permanent

impairment if the degree of permanent impairment resulting from the injury is more

than 20%.

Note. For workers with more than 20% permanent impairment, entitlement to

compensation may continue after 260 weeks but entitlement after 260 weeks is still

subject to section 38.

(3) For the purposes of this section, the degree of permanent impairment that results from

an injury is to be assessed as provided by section 65 (for an assessment for the

purposes of Division 4).

In relation to grounds 1 to 3, Acting President Snell found:

• The appellant’s submissions, in so far as they relied upon the Police Regulation

(Superannuation) Act and her assertion that she was a contributor pursuant to that

Act (and therefore a Police Officer) could not succeed. The definition of worker in s 4

WIMA is not derived from that Act and exempts from the application of WCA and

WIMA, certain people whose rights to compensation derive from that Act. He stated

that the very fact that the appellant was seeking to establish that she was a ‘police

officer’, and therefore quarantined from the effect of the 2012 Amending Act, is

illustrative of the fact that her rights are pursuant to the WCA and WIMA.

• Chapman-Davis and Stockwell do not support the proposition that whether a worker

falls within one of the exempt categories of worker in Sch 6, Pt 19H, cl 25 WCA

depends on an analysis of the worker’s duties from time to time. Chapman-Davis

involved a worker who was classified as a ‘paramedic’, but who was injured when

working on a 12-month secondment as a health adviser. It was common ground that

the duties of a health adviser were different to those of a paramedic. Gleeson JA

(McColl JA agreeing) said at [74]:

If, as should be accepted, the language of the exemption is not to be construed

as containing the adjectival limitation of ‘operational’, it may also be doubted

that a functional limitation or qualification of the type suggested by the appellants

was intended, there being no particular duties which the nominated classes of

worker are required to perform to engage the exemption. The language used in

the exemption, ‘... in respect of an injury received by a ... paramedic’, is broad

and unqualified. The better view is that whether a worker answers the statutory

description in the exemption is determined by their designation or holding the

status as a ‘police officer, paramedic or firefighter’ at the time of receipt of an

injury, not by reference to the duties they are required to perform.

• The effect of the Court of Appeal decision in Chapman-Davis was summarised by

McColl JA in Stockwell at [55]:

In brief, the court held that the focus of the cl 25 exemption was a designation

or status of the worker, rather than certain characteristics or functional aspects

of a person’s work at the time the relevant injury was suffered.


• In Stockwell McColl JA described the task at hand in considering the application of cl

25:

The SNSW’s core contention turns on the construction of the 2006 Award. The

term ‘paramedic’ had a particular meaning for the purposes of cl 25. That

meaning was determined in Chapman-Davis as turning on whether a person

employed by the Ambulance Service held the designation or status of

‘paramedic’ at the date of his or her injury. To resolve that issue in the present

case, it was necessary for the arbitrator and, if appropriate within the confines

of s 352 of the WIM Act, the President, to engage in a process of fact-finding

concerning the respondent’s status within the Ambulance Service and, too, to

construe the 2006 Award and cl 25. (excluding citations) (emphasis added)

• The evidence does not suggest that the appellant was ever classified as, or held the

status of, a ‘police officer’. The ranks of police officers set out in s 12 of the Police Act

does not include ‘Parking Patrol Officer’. A person carrying out the functions of a

‘police officer’ is required to take an oath or affirmation in compliance with s 13 of the

Police Act’. However, there was no evidence that the appellant did so.

• The Arbitrator did not err in failing to consider the ‘indicia’ identified by the appellant,

but these were not determinative of the issue of whether she was a ‘police officer’

within the meaning of cl 25.

• In any event, the Court of Appeal’s decisions in Chapman-Davis and Stockwell direct

attention to the classification or status of a worker. For the reasons set out above,

those decisions do not assist the appellant.

• In relation to the appellant’s submission regarding the beneficial nature of the

legislation, the application of the principle stated by the High Court in Bird v The

Commonwealth (1988) 165 CLR 1, is dependent upon the existence of 2 possible

interpretations of the legislation being construed. However, the Arbitrator identified a

single properly available interpretation, which was consistent with the decisions in

Muscat and D’Angelo. This involved applying the definition found in the Interpretation

Act. Therefore, the beneficial nature of the legislation does not assist the appellant.

• The evidence does not suggest any estoppel that would prevent the respondent from

disputing whether the appellant was a ‘police officer’.

Acting President Snell also rejected grounds 4 and 5. In relation to ground 6, which alleged

an ‘error of discretion’ in denying the appellant an ‘opportunity of arbitration or oral hearing’,

he stated:

100. The appellant raised two specific arguments, based on an alleged failure to afford

her procedural fairness, relating to the opportunity to address the decision in Muscat,

and whether she should have been informed that her submissions on s 5(2) of the

Interpretation Act may not be accepted. These submissions are rejected for reasons

given above. The appellant additionally raises a more general argument, that she was

denied procedural fairness because, in her submissions in reply, she requested an

oral hearing. Her submissions do not indicate what further submissions she sought to

put, or why they were not put in her primary submissions to the Arbitrator, and her

submissions in reply. I note that the appellant was legally represented at that time.

Section 354(6) of the 1998 Act clearly entitled the Arbitrator, in the exercise of his

discretion, to deal with the matter in the way that he did. He afforded the appellant the

opportunity to make submissions. The appellant has not identified any basis on which

the Arbitrator failed to afford her procedural fairness, in determining the issue before

him without an oral hearing. She has not identified any basis on which the Arbitrator

erred, applying the principles in House v The King. I note the Arbitrator’s reasons are

not raised as an issue. Ground No 6 is rejected.


In relation to ground 7, Acting President Snell noted that the appellant appeared to raise the

issue of bias based on pre-judgment, but whether actual bias or apprehended bias is not

specified. At the least, the Arbitrator expressed an a priori view that was inconsistent with

the appellant’s argument regarding the relevant definition in the Interpretation Act. He

stated:

110. How the appellant would have sought to articulate the basis of any allegation of

bias is unknown, as no application was made before the Arbitrator. The appellant has

not made submissions on this appeal dealing with such matters, other than the bare

stating of the ground. The appellant was legally represented during the proceedings

before the Arbitrator. The Direction, containing the passage to which this ground

refers, was dated 20 February 2018. The Arbitrator’s decision was issued on 8 March

2018, a little more than two weeks later. There is no suggestion that any application

was made to the Arbitrator before his decision was issued, raising bias in either of its

forms.

111. In Vakauta v Kelly [1989] HCA 44; 167 CLR 568, [5] Brennan, Deane and

Gaudron JJ stated:

Where such comments which are likely to convey to a reasonable and intelligent

lay observer an impression of bias have been made, a party who has legal

representation is not entitled to stand by until the contents of the final judgment

are known and then, if those contents prove unpalatable, attack the judgment

on the ground that, by reason of those earlier comments, there has been a

failure to observe the requirement of the appearance of impartial judgment. By

standing by, such a party has waived the right subsequently to object. The

reason why that is so is obvious.

In such a case, if clear objection had been taken to the comments at the time

when they were made or the judge had then been asked to refrain from further

hearing the matter, the judge may have been able to correct the wrong

impression of bias which had been given or alternatively may have refrained

from further hearing. It would be unfair and wrong if failure to object until the

contents of the final judgment were known were to give the party in default the

advantage of an effective choice between acceptance and rejection of the

judgment and to subject the other party to a situation in which it was likely that

the judgment would be allowed to stand only if it proved to be unfavourable to

him or her.

112. The above passage was applied in Smits v Roach [2006] HCA 36; 227 CLR 423

and in the New South Wales Court of Appeal in Brown Brothers v Pittwater Council

[2015] NSWCA 215. Consistent with the approach taken in those cases, the appellant

should be taken to have waived any right she may have had, to object to the Arbitrator

determining the matter, on the basis of either actual or apprehended bias (Smits [44]

– [49], Brown Brothers [43]).

113. If I am wrong on this point, any ground based on actual or apprehended bias

could not succeed in any event, due to the lack of articulation of the basis of any

objection to the Arbitrator continuing to deal with the matter.

The appeal failed.

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